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Last Friday, I wrote a post about preemption by rulemaking, but even I didn’t know how timely it was.

Thursday afternoon the National Highway Traffic Safety Administration issued new rules governing seat belt safety. Inserted in the preamble to the rule and the rule itself was a provision stating that the rules preempt state law tort claims related to seat belt injuries. If the manufacturer complies with the rules, whether or not the rules are adequate to protect consumers, then they are off free.

The problems? Historically, litigation has been a key to improving safety, particularly in the automotive industry (remember the Ford Pinto?). Joan Claybrook, the president of Public Citizen and a former administrator of NHTSA states:

The fear of lawsuits is one of the greatest incentives automakers have to build stronger and safer vehicles. For NHTSA to suggest that automakers should have blanket immunity from consumer liability lawsuits means that more defective vehicles will be manufactured, fewer will be recalled, the public will have less information about injury causation and more families will needlessly lose loved ones on our roads each day

And another automobile example shows just how egregious preemption can be. The NHTSA is currently in the process of rewriting rules relating to roof crush safety. Despite the fact that the process was begun in 2005, the agency is telling Congress they need two more months to get a final rule. Amazingly, the existing rule is 35 years old.

"So what?" you ask. The 35 year old standards are just out of date and useless. Clearly, there have been many technological advances that have greatly improved the safety of vehicles. But if preemption applied, manufacturers could argue that no matter the improvements in technology, they still couldn’t be held liable because they complied with the 35 year old standards. That’s not justice.

Governmental agencies just aren’t nimble enough to keep up with ever changing technology. Heck, it’s taken three years for the roof-crush process to wind its way from start to completion. What was state-of-the art at the start of that time frame may no longer even be relevant to what’s state-of-the art today. And that’s not to mention the original 35 year old standards. If manufacturers are only required to comply with such out-of-date standards due to preemption, too many lives will have been lost.

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